The DPP has suffered a major setback after an anti-corruption court declined to allow introduction of additional evidence in the Sh7 trillion Triton case facing fugitive Yagnesh Devani and five others.
In a brief ruling, chief magistrate Lawrence Mugambi said allowing the information is likely to embarrass the accused by having them confront new allegations at a very late stage in the trial that has been on for the last 12 years.
Mugambi termed the move by the DPP as an ambush and "given the circumstances, it would be very frustrating to expect the accused persons to go digging for information that they can present in their defense after such a lengthy period".
“Allowing such evidence would mean sending the accused persons back to the drawing board in terms of preparing and defending this case, which they have participated in defending for the last 12 years. Such a move is likely to cause them untold prejudice,” he said
The prosecution had sought to be allowed to amend the charge sheet, add evidence and call additional witnesses, one being a document examiner.
The case, which has been in court since 2009, was prosecuted by Edwin Okello until he died in May. It was taken over by a new prosecution team and 35 witnesses have since testified.
Yagnesh Devani, Mahindra Pathak and Triton Petroleum are accused of jointly disposing off 13 million cubic metres of diesel worth Sh32,047,783 without consent of Emirates National Oil Corporation (Singapore).
Others charged are Benedict Mutua, Peter Manono Mecha and Phanuel Silvano. They are all charged with conspiring to defraud a number of petroleum companies by purporting that Triton had diesel ready for sale at KPC storage in Kipevu.
When the matter was being reviewed, they discovered some documents key to the case had not been supplied to the defence. The retrieval of the said documents necessitated calling one more witness and introducing new documentary evidence. This was opposed by the defense team.
The defence argued that the documents the prosecution sought to supply and rely on as evidence have always been in its possession yet it is now seeking to introduce them at the tail end of the trial.
Magistrate Mugambi agreed with the prosecution that they are allowed to make continuous disclosure but it's also important for the court to uphold the principle of fairness and protect the integrity of the trial process.
"Even with the principle of continuous disclosure, applications for late disclosure must be weighed carefully to ensure they do not bring about fundamental unfairness in a trial,”
Mugambi said no tangible justification has been proffered as to why those documents were never supplied until now.
He dismissed the review explanation by the prosecution, saying it does not explain whether the documents have all along been with them or whether they were discovered from elsewhere.
“The only consideration the court is willing to make would only be restricted to the calling of expert witness that is the document examiner,” he said
This consideration was based on the fact that “a document examiner is not a witness of fact. His evidence is purely based on scientific analysis of documents,” the magistrate said.
Mugambi said he would only allow the application by the prosecution to the extent of calling the document examiner to give his expert opinion evidence and his reference to the documents shall only be limited to those considered to arrive at his findings in preparing his report.
On the amendment of the charges, the court said the defence had no objection, especially owing to the fact that some accused persons were dropped after the prosecution successfully withdrew the case against them under Section 87 of the Criminal Procedure Code.
“I would allow the amendment up to that extent but disallow any attempt to introduce new charges at this stage in view of my findings in the foregoing,” he said.
